A right to buy back shares could be excluded from the division of common property

A married couple separated in 2021. Their joint property became subject to judicial administration. Prior to the cut-off time, the husband had free of charge given shares of significant value to his three children as part of a generational transfer. Simultaneously, it was agreed that he would have the right to buy back the shares at a discounted price. The Supreme Court’s majority of three judges identified several factors indicating that the buyback right constituted a real economic value in the hands of the husband. However, a final decision on this issue was not made, as the right in any case was deemed to be of a personal nature. It could therefore be withheld from the division under section 61 (c) of the Marriage Act. It was argued that the agreement, including the buyback right, had to be viewed as a whole and in the light of the fact that the transaction was a gift promise as part of a generational transfer. Two justices dissented, finding that the buyback right should be included in the division basis. Dissenting opinions 3-2.

Read the whole judgment (Norwegian only) (PDF)

Areas of law: Familiy law. The Marriage Act.

Key paragraphs: 42, 43, 49, 69

Justices: Indreberg, Bull, Ringnes, Østensen Berglund, Steinsvik